In the case of Finchum v. Finchum, No. M2012-00975-COA-R3-CV, WL 17155CV (Tenn. Ct. App. Feb. 13, 2013), Tennessee divorce attorneys learn that rehabilitative alimony is modifiable when a substantial and material changes of circumstances can be shown.
Facts: In May of 2009 Husband and Wife divorced after a ten year marriage, during which they had two (2) children. The Marital Dissolution Agreement ("MDA") awarded Wife rehabilitative alimony of $1,000 per month for thirty (30) months to terminate in June 2012 or upon Wife's death. In September 2009 an Amended MDA was entered and approved by the court. In the pleading, Husband agreed to extend his alimony payments by six months.
In September 2010 Husband filed a Petition to Modify seeking to terminate his alimony and modify his child support payments based on Wife's remarriage and her increased income. Wife filed an Answer and Counter-Petition alleging Husband was in contempt for unilaterally terminating his alimony payments in April 2010. Wife then filed a Motion for Partial Summary Judgment asking the court to deny Husband's request to terminate his alimony obligation. Wife asked the court to award her the outstanding alimony payments, her attorney's fees, and to find Husband in Contempt. The trial court granted Wife's Motion for Partial Summary Judgment and found that the alimony was contractual in nature and, therefore, un-modifiable. In the Final Order issued in April 2012, the trial court found Husband in contempt for unilaterally stopping the alimony payments prior to filing his Petition and awarded Wife $5,200 in attorney's fees. Husband appealed the trial court's decision.
Analysis and Conclusion: The Appellate Court referred to Tenn. Code Ann. § 36-5-121(e)(1) which provides that rehabilitative alimony is modifiable at any time by the court. It surmised that the trial court must have determined the alimony awarded to Wife to be in solido alimony, which is not modifiable, instead of rehabilitative alimony. Because both the MDA and Amended MDA in the case at bar referred to the alimony as rehabilitative, the Appellate Court concluded that the alimony was modifiable. It remanded the case back to the trial court to determine if Husband could prove a substantial and material change in Wife's circumstances to warrant a termination or modification of the rehabilitative alimony as of the date of the Petition (September 1, 2010).